Memeorandum

April 12, 2012

Zimmerman Arrest Affidavit Described

[Alan Dershowitz on the affidavit: "This is so thin that it won’t make it past a judge on a second degree murder charge”; "irresponsible"; "an elected public official who made a campaign speech last night for reelection".]

[Jeralyn Merritt: Affidavit = FAIL. "That a judge signed off on this... is perplexing, to say the least".]

The Orlando Sentinel described the arrest affidavit for George Zimmerman [available here]; we note a lack of self-confidence from the prosecution, which switches to the passive voice at a crucial moment in the action:

In the two-page document, prosecutors offer little new information about the shooting.

However, they said in the affidavit that "Zimmerman confronted Martin," an apparent contradiction of Zimmerman's version of the events that led to the shooting.

The document says Trayvon's mother identified the screams for help heard in a 911 call as those of her son. It also reveals that investigators interviewed a "friend" of Trayvon's who was talking to him in the leadup to the shooting.

Based on the description, it appears the friend was the girl described by Martin family attorneys as his girlfriend.

"During this time, Martin was on the phone with a friend and described to her what was happening," the affidavit said. "The witness advised that Martin was scared because he was being followed through the complex by an unknown male and didn't know why."

Martin tried to run home, the affidavit says, but was followed by Zimmerman. "Zimmerman got out of his vehicle and followed Martin."

The affidavit goes on to say that "Zimmerman disregarded the police dispatcher" who told him to stop, and "continued to follow Martin who was trying to return to his home."

Zimmerman, the affidavit says, "confronted Martin and a struggle ensued."

According to the affidavit: "Trayvon Martin's mother has reviewed the 911 calls and identified the voice crying for help as Trayvon Martin's. Zimmerman shot Martin in the chest."

That is a prosecution document and certainly represents one theory of the case. The defense will challenge many of those points, as we know.

I especially like the passive voice at the critical plot point: "...a struggle ensued". Those pesky struggles, ensuing like that! One might have thought the prosecution would at least argue that Zimmerman initiated the struggle, in addition to the verbal confrontation.

Corey declined to discuss in detail how the investigation was carried out, but her statements shed some light on how the prosecution team reached the decision on a second-degree murder charge. She said the decision was made last week, and prosecutors used the arrest warrant an investigator had sought early in the case.

If - IF! - the affidavit described above is the arrest warrant mentioned by the Herald, then how did it come to include the details from the cellphone girlfriend? She was brought forward by Martin family attorney Ben Crump after the release of the 911 calls and was originally only going to talk to the Federal investigators [my skepticism about the circumstances of her emergence is here].

The obvious guess is that she (i.e., Mr. Crump) changed her mind and talked to the state investigators, who used her story to update the base affidavit.

Just as a reminder of how little seems to have changed, here is the Orlando Sentinel from Apr 2:

Some news agencies have reported that Sanford's lead investigator, Chris Serino, wanted Zimmerman charged with manslaughter that night but Wolfinger's office put a stop to it. The city of Sanford issued a statement saying that is not true.

Police did that night prepare an incident report that lists "manslaughter" as the possible crime being investigated, but in every case in which an officer prepares an incident report, he or she fills in that spot with some crime and statute number to allow the agency to properly report crime statistics to the FBI.

Two weeks ago, during an exclusive interview with the Sentinel, [sidelined police chief] Lee disclosed certain details of the investigation and during that session, attended by Serino and others, Serino said his investigation turned up no reliable evidence that cast doubt on Zimmerman's account – that he had acted in self-defense.

"The best evidence we have is the testimony of George Zimmerman, and he says the decedent was the primary aggressor in the whole event," Serino told the Sentinel March 16. "Everything I have is adding up to what he says."

Numbers add up to nothing.

The defense counsel thinks his client has a better chance in a court of law than in the court of public opinion:

After Zimmerman exited, O'Mara asked the judge to seal documents in the court file containing other information -- including witness statements and information.

"I am seeking on my clients behalf... that we do a complete sealing of that record," O'Mara said, adding that the sealing would be temporary. The judge agreed.

"In the rule of law, we have jury trials for a purpose," De La Rionda said. O'Mara echoed that sentiment.

"It really, truly, it works," O'Mara said of the judicial system, telling reporters that in a case of this profile, if it doesn't work, "you'll tell us."

O'Mara said it made more sense to forgo a bond hearing at this point, electing to give time to allow the fervor surrounding the case to die down. He said his client is in protective custody.

If the publicity dies down the pressure on the prosecutor to showboat may diminish, if that is what is happening here. And it might work - a Kardashian is bound to do something daft any day now, yes?

I do remember (perhaps incorrectly) that the Duke defense team scuttled the prosecution and kept the case out of court by leaking exculpatory material to the press. But I seem to recall leaks from both sides there.

THAT ALLEGED RACIAL EPITHET: Mrk Levin just read the affidavit on his radio show. If I heard him correctly, the alleged epithet mumbled by Zimmerman on the 911 call was "Effing pukes". But the copy provided by 'TJ6' seems to say "punks". Does Levin need glasses, or do I need a hearing aid? Not exclusive possibilities.

THE GIST:

The map is not friendly to the notion that Zimmerman overtook an urgently fleeing Martin. Zimmerman was behind him and his detination in front. Martin doubling back makes a lot more sense in explaining how they met.

As to Martin being scared, let's keep in mind - when the young lady was telling this story Zimmerman was believed to be 250 pounds, based on his 2005 police report.

Now the Times has him down to 170. So the 6'3" 150 lbs Martin was fleeing from the 5'9" 170 lb. Zimmerman? How scared was he? So scared that doubling back makes no sense?

I can believe that Zimmerman seemed ominous when parked inside his SUV. Once he stepped outside he became the Incredible Shrinking Threat.

THE RACE CARD, SLYLY: The affidavit claims that Zimmerman "profiled" Martin but does not describe the profiling. Walking from patio to patio rather than sticking to the sidewalk? Peering into windows? Being black? No guts at all.

The arrest affidavit sounds like it was written using nothing more than the arguments circulated on the blogs by the pro-Martin side starting around March 10th. It is pretty amazing to think there is no "value-added" after 3-4 weeks of "special investigation".

The first thing the defense council should do is ask the judge to order a clarification of the words the prosecutor used in the affidavit.

He should ask that the word “run” be defined. Does “run” mean casually stroll? Does it mean walk with purpose? Could it be that the prosecutor meant “jog”? Surely, it can’t be the common usage of to quickly move from one position to another at the limits of one’s ability. Such an esteemed team of investigators certainly could have calculated the distance and time involved and compared it to the 911 tape times.

The best defense of a politically inspired charge is public embarrassment of the prosecutor.

On Fox today, they were playing the 911 call from Zimmerman. The description was listen to him breathing and the wind noise on the phone. He is also talking very low. The implication being he was lying to the 911 operator about stopping his pursuit.

From the affidavit: “Witnesses heard people arguing and what sounded like a struggle.” Wow. The NYT says witnesses heard nothing. But, what was the argument? What of the witnesses who saw Martin on Zimmerman bashing his head? Is it ethical to obtain an arrest by withholding pertinent evidence? Is it legal?

cbolt, I'm confused....do police investigators prepare "affidavits" or do they simply prepare "reports"? The "Serino affidavit" sounds like he felt he needed to append some additional rebuttal to the official police report?

The affidavit is thin (cough cough) on what had to be Zimmerman's account while he was on the ground. Even if all the stuff in this affidavit is true, Z still has a claim of self defense if M has Z immobilized and is beating on him.

In fact, the question of self defense turns on the last 15-60 seconds of M's life; not on the 3 minutes that preceded Z being on his back.

Interesting the Serino affidavit is still undisclosed but unless he lied or the newspaper TM quoted above did, there is no contrary evidence the SP found that undermines Serino's belief there is no probable cause to prosecute GZ for 2d degree murder.Nothing that Corey has said suggests she turned up a single piece of new, dispositive evidence to support the charge.

Trayvon was hiding in the back yard common area for at least three minutes when Zimmerman appears.(based on The call to the dispatcher.) The fight took place near the entrance to the back yard area. Trayvon approached Zimmerman. How else could the happen there? The girlfriend is lying and has probably been coached. She must have heard most of the verbal altercation. (If you take into account the time of her last call to TM and the accounts of the neighbors hearing two angry voices.)

-- The "Serino affidavit" sounds like he felt he needed to append some additional rebuttal to the official police report? --

The Serino affidavit appears in a report by Matt Gutman of ABC. Gutman reports that Serino wanted to charge and arrest Z the night of Feb 26; and documented his rationale in a filing with the state attorney. We don;t know if the Serino affidavit is a perfunctory "could be manslaughter, here are the sworn facts" cover letter; or if Serino had substantive doubts about what parts of Z's account were false, and documented those details.

The news reports are contradictory as Mcguire points out. Serino characterized Z as the best witness, and none of the other evidence contradicted Z's account.

Something tells me that when a judge hears the motion to dismiss on the grounds of self-defense, a whole lot of attention is going to focus on "a struggle ensued."

Especially in light of that other Florida case where a judge found that pursuing someone doesn't negate a claim of self-defense, if the one being pursued turns around and physically attacks the one doing the pursuing.

-- do police investigators prepare "affidavits" or do they simply prepare "reports"? --

Both. An affidavit could be a sworn statements of what they heard a witness say, or that they obtained a statement from a witness, etc. A report could be like the initial police report , or pages with photos, or an analysis of forensic evidence, etc.

A contrarian possibility is that the charges reflect what the TrayM community is sure really happened and brought by the top gun friendly advocate of their POV. They are getting exactly what they "say" they want.

Unless the public information available so far is completely bogus these fantasy facts will be knocked down by the system in the most credible fashion possible under the circumstances.

Love the blog, yoo're all very entertaining, informative and clever. Am a long time reader. I normally agree with jist of things around here but in this case I do have a question. I get that the case is thin... about the political winds, etc. Having siad that, here's the thing - are we as a society really going to allow something like this to happen where a neighborhood watch member is out with a gun, he sees something, follows up on it, somebody ends up dead and he's ultimately just sent home? Are we really going to not enforece rule sets to that degree?

-- Interesting the Serino affidavit is still undisclosed but unless he lied or the newspaper TM quoted above did, there is no contrary evidence the SP found that undermines Serino's belief there is no probable cause to prosecute GZ for 2d degree murder.Nothing that Corey has said suggests she turned up a single piece of new, dispositive evidence to support the charge. --

Oh, contraire. Corey has picked up two new witnesses. DeeDee, and Trayvon's mother. These witnesses are not part of Serino's analysis. DeeDee was unknown to the police until after Crump announced her.

All Corey has to do is substitute DeeDee's testimony for that of eyewitnesses who saw Z taking a beating, assert that Z acted in contravention of dispatch suggestions, and voila - reversal of fate.

@chas - Geeze, thanks for the troll comment. Come on, I'm not trolling. No, I don't think you can get your head caved in either, looking our for your neighbors. I get it. I'm just asking an honest question about how we can expect something like this to happen and there be no consequences. How can that sit well?

-- are we as a society really going to allow something like this to happen where a neighborhood watch member is out with a gun, he sees something, follows up on it, somebody ends up dead and he's ultimately just sent home? --

That's one of those "it depends" things. Not that it happened here, but if 5 eyewitnesses all see the watchman get jumped, and only when it appears he's done for does he defend himself, what do think? Jail the watchman for a few months to sort things out?

And so what if he's in his own neighborhood - what if it's a jogger in somebody else's neighborhood who gets jumped?

What it it's just a homeowner who hears something outside his door, but ventures two doors down to further investigate, knowing your house next door is inhabited only by your two children and a babysitter, while you are out at dinner and a movie?

I don't think Fenderdeluxe (great nom de net, BTW) is a troll. Many of the regulars here have posed the same question re the larger societal issues of concealed carry, self-defense, and the various state statutes regarding when/if one can legally use violent force against another citizen.

Dee Dee has no first hand knowledge of what happened in the critical last minutes. GZ said he had iven up following Trayvon and was trying to get an address to give the copes. Trayvon's mother's voice i.d. will neer make t to a jury in a real court.

Having siad that, here's the thing - are we as a society really going to allow something like this to happen where a neighborhood watch member is out with a gun, he sees something, follows up on it, somebody ends up dead and he's ultimately just sent home?

Sure, why not, when the evidence backs up his claim it was self defense, that he was attacked and had to protect himself?

And you really need to keep up -- he was on the way to the store, not on patrol.

Having siad that, here's the thing - are we as a society really going to allow something like this to happen where a neighborhood watch member is out with a gun, he sees something, follows up on it, someone assaults him while he's returning to his vehicle to wait for police to arrive, he's knocked him to the ground, a bystander witnesses his attacker repeatedly slamming his head into the ground and calls 911 for help, the attacker tries to grab the neighborhood watch guy's weapon, somebody ends up dead and he's ultimately just sent home?

The comment system here can be a little tricky sometimes, fenderdeluxe. Looks like it ate the bolded portion of your rhetorical question.

I don't think Z "was just sent home". He was questioned at the scene, then put in handcuffs and brought to the police station and interviewed. They also conducted a police investigation at the scene to determine what had happened. Witnesses were interviewed, probably photographs were taken, although I don't know that for a fact. At one point during the investigation, apparently one of the police suggested to the DA that a charge of manslaughter should be filed, but the DA declined, presumably because he didn't believe he could make a case for that in a court of law.

Isn't that how it should work? A lot of time the cops are pretty certain they know who done it, and the DA thinks the cops are probably right, but they don't take the case to trial unless they're pretty confident they can win it, because double jeopardy attaches if they lose.

(Sorry about the excessive typos even for me--A new medicine for a pinched nerve is making it even harder for me to type accurately and proofread--Bear with me please until my body adjusts or I throw the stuff out and just live in agony.)

Thank you, cbolt. I thought so, but just wasn't sure if that had to wait until it was definitely going to trial.

I'm interested in hearing her explaination of why she waited almost three weeks to come forward with information of the phone call. I think the attorney said she was distraught, and had to be hospitalized. Which of course then begs the question - shouldn't her parents, or the physician who admitted her to the hospital have informed the police about this evidence?

-- As I recall, her statement bolstered much of what Zimmerman said. --

DeeDee's statement corresponded with Z's that M asked the first question, that M initiated verbal contact. The words exchanged were radically different, but in all accounts, M initiated the verbal contact.

If Dee Dee is who the prosecution is hanging its hat on, it might be a short trial. This is the person who was so distraught she couldn't attend her boyfriend's funeral and apparently told no one she was on the phone with him moments before he died. It's just weird.

Appalled, for a long time I'e been trying to figure out how your thinking process works, and today I confess it's a mystery I cannot hope to crack.

You and my wife have something in common, then.

In this case, my thought process is to look for what information is missing, and whether it is too substantial to make a judgement one way or the other. Like NK, I am also looking for inconsistancies. I am slos trying to figure out, in this case, why the prosecutor thinks certain information is impportant, and proves their case.

I agree with folks that the affadavit is thin. I do not know whether this is standard or not.

-- I'm interested in hearing her explaination of why she waited almost three weeks to come forward with information of the phone call. I think the attorney said she was distraught, and had to be hospitalized. Which of course then begs the question - shouldn't her parents, or the physician who admitted her to the hospital have informed the police about this evidence? --

Crump and DeeDee's mom both reported that DeeDee had to be hospitalized over the incident. DeeDee did not go to M's funeral. The treating physician probably had no clue that DeeDee was any sort of witness, nor would he have any reason to think or assume that she hadn't been forthcoming already. His job is to treat the patient's medical condition.

DeeDee's failure to present herself is troublesome for DeeDee. Especially if she heard an account of things going down that is unfavorable to M. There is that twitter message from somebody else (cousin?) high-5'ing M for giving Z a beat down before getting shot, and the cousin had to hear about the beat down from somewhere.

Same sort of question with DeeDee's parents, good point. Keep in mind they are in Miami, and the killing took place a couple hours away - but still, it would be proper to let the authorities know.

I have a feeling DeeDee is going to find herself in uncomfortable water, and that she'll eventually sink the state's case.

In large measure, the criminal system processes defendants. It is designed to dispose of the matters efficiently but not necessarily fairly. In the Federal system, the US Attorney almost never tries a case that is not a slam dunk. He is able so to do because of the vast wealth and power of the government arrayed against an individual.

-- taht can be impeached pretty easily though. what does a punch sound like over a phone? how can she be certain it was a punch and how can she know who punched who? --

I agree, the testimony of "I heard a punch" is probably worthless as to who started it, but it could be useful to establish timing (if timing is an issue to corroborate or impeach another witness's testimony).

I hear you all, I really do. There's just something about this that just isn't... right. And I admit that I am not up on this to the degree that many of the rest of you are - especially Tom.

@lyle - thanks!
@derwil - I see it that way as well, re: the process.
@NO LIMIT - perhaps, but I'm not quite certain that it happened exactly like that... but again I'm not the expert on this.
@lyle - legal, have-to-defend-yourself consequences
@Rob Crawford - very well may be ginned up as you described. It's just that when he follows Martin... at night...

-- She said he dropped the phone or some such and she heard nothing after he said he was walking not running away. --

DeeDee's recorded affidavit, as reported by Crump, has her hearing "Are you following me" and Z's response, followed by what sounds like a shove then the line goes dead (earpiece leaves M's ear - speculates DeeDee). The inference being that DeeDee is an earwitness to the start of the final altercation, about 60-80 seconds before the firearm is discharged.

I don't think the gf's testimony helps for all the reasons cited in other comments. Anything she says that incriminates GZ can be dismissed with the simple question: if you heard this and later found out that GZ was let go, why didn't you speak up at that point? Witnesses that came to the party after Sharpton came to town are similarly diminished.

I don't see how this goes to trial. The Martin family will not want to go through discovery. I don't know if TM was slipping away or just sowing some youthful oats and had a bright future. The former will be easier to believe however.

Corey, IMO, is standing firmly on a steaming pile of horseshit wrt the affidavit. If she thinks the possible timeline conflicts are sufficient to go after Zimmerman she has to present Martin as a scared cripple, unable to cover 50 yards in 10 minutes as he fled from the ravenous racist pursuer coming after him with a rope in one hand and a smoking pistol in the other.

She needs a jury as dumb as the voters who have allowed her to retain office.

One facet I haven't seen reported is how dangerous a place is Marvin Gardens where Trayvon was raised, and how his experience growing up there may have influenced TM's perception of GZ's pursuit of him.

-- The barely containable giddiness of the Special Prosecutor is really bugging me today... --

She has a good track record of success. The judges give prosecutors every benefit of the doubt, etc. BUT, she's got a capable adversary, and she probably has some huge blind spots. This is her day in the sun.

Where's the crime there? What felony am I committing if I walk the same path someone walked previously? What, in particular, have I done that makes it acceptable for them to attack me?

There's no evidence (that we know) that Zimmerman ran after Martin or grabbed him. The affidavit doesn't sound like there's any evidence available to the prosecutors that disagrees with that -- "a struggle ensued" is meaningless.

Could Martin have been afraid? Sure -- so he should have either called 911, or made his way home. He could have dealt calmly and respectfully with Zimmerman. Instead he chose to attack, and he ended up putting an armed man in fear for his life -- with predictable results.

And why should there be "legal, have-to-defend-yourself consequences" when you've broken no laws?

Unfortunately the Martins as coached by their mouthpiece Crump have played their hand -

We have heard more than once that they just want an "arrest", they don't need a "conviction" but now they do want it to "go all the way", and then it was just an "accident" but now it was an "accident" that the two men met up...

Gawd. I feel their pain, I really do - coming from someone that has lost a few family members within the last year - it hurts and hurts bad. But I'm even sadder to see them being handled.

Appalled, I don't think these affidavits necessarily are very detailed, but given Fla law and the attention given this case and its history one would have expected something in it disposing of the Self Defense claim and evidence.Instead we have only a one sided document with no indication the SP ever considered the conflicting evidence.

I think Z made a mistake that night following M, especially after the dispatcher warned him not to and told him that the police were on the way. I don't think that mistake alone warrants going to prison for life for 2nd degree murder. Maybe some lessor charge perhaps, I don't know . . . but 2nd degree seems way too extreme, and I think that charge was brought for purely political reasons, to placate the mob, and I find that sickening.

I think M. made a mistake typical of many 17 year olds, especially ones seeped in gangsta culture thinking that he was a tough dude who could take down the man following him. That mistake had tragic consequences for him and for his family and loved ones, because the man turned out to have a gun.

cboldt -- the affidavit doesn't cite any evidence to support that recounting of events; it's clearly just a fever-dream version of Zimmerman's statement. Corey intentionally ignored all evidence that argues for self-defense.

Yeah, she's a prosecutor, but ISTR that the original prosecutor DID look at all the evidence, and didn't think there was enough to over come the claim of self defense.

BBC News just reported on TV on the Zimmerman booking. It played GZ responding to the Judge booking him with a "Yes Sir", then said that that was the first time we had heard from George Zimmerman since hearing the tapes. Then BBC played the audio tapes of Zimmerman saying "He’s got his hands in his waist band. And he’s a black male."

No Impression given to the listener that GZ had previously been asked by the dispatcher about TM's race. At least the BBC did not doctor the tape like NBC etc, but the same impression was left by deciding to play a later portion of the tape, without the earlier queries by the Dispatcher.

What's the prosecution going to do with the hair and blood samples the cops collected from the sidewalk?
What? No samples??
Wait. The wingonarrative is that the cops carefully paced through what happened with Zim explaining it all to them. When they get to the part where his head is being beaten on the sidewalk, they ask him, exactly where was your head being beaten against the sidewalk. Then they test that part of the sidewalk for hair and blood.
What? No such test?
No hair? No blood?
What about pieces of sidewalk on Zim's head?
If this evidence doesn't exist, I'll be fascinated to learn why it doesn't.
Meanwhile, I note the commenters here are still in denial of the eyewitness who saw Zimmerman on top of Martin. Sad...